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US preachers lit homophobia fuse

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Jon
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« Reply #15 on: March 14, 2014, 08:21:31 AM »

Unless if by some darkly comical cosmic conspiracy they manage to garner a two-thirds or greater majority in the upcoming elections.  They will then also be able to amend our Constitution at will.
If I recall correctly, the constitution provides for several of the protected civil rights to be suspended during a state of emergency, including those referring to gender orientation.  During the P W Botha era we lived with a nearly permanent state of emergency.  It would be possible for government to use this route, should attempts to change the constitution fail.  Another threat is government simply ignoring the rule of law.  We have seen cases where they ignore court orders.     

It is exceptionally unlikely that the ANC could just ignore the rule of law especially with international attention. Also a state of emergency could never impact ones right to sexual orientation because it has no connection to what a purpose of the a state emergency could be. The type of rights that are suspended are the rights that could potentially hinder the effective handling and resolution of a crises. Homosexuality is hardly hindrance to anything. Therefore if there is no rational purpose in limiting that right then it won't take effect.

But before we get a head of ourselves it doesn't seem like our country will deteriorate to the point where there is a complete loss of the judiciary. I don't think the ANC will even get enough support to have a two thirds majority. Even if they did get it and they could amend the the bill of rights to the extent of abolishing gay rights, section 1 (which requires 75 percent of the the members of the assembly to amend) could still be relied on to protect those rights. Our Constitution is admirably clever.
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Rigil Kent
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« Reply #16 on: March 14, 2014, 09:12:32 AM »

It is exceptionally unlikely that the ANC could just ignore the rule of law especially with international attention.


Foreign countries have seen South Africa change into a democracy, thanks to their sanctions and pressures, and wearing the right kind of t-shirts to rock concerts. Their job here is done. Now that apartheid has been sorted out, the world's interests in us have waned. We are of little further importance, and if our constitution is changed to suit the whims of the majority, then the word will be likely to merely go tsk-tsk and send Stephen Fry out to make a few documentaries.

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Hermes
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« Reply #17 on: March 14, 2014, 13:34:30 PM »

Also a state of emergency could never impact ones right to sexual orientation because it has no connection to what a purpose of the a state emergency could be. The type of rights that are suspended are the rights that could potentially hinder the effective handling and resolution of a crises. Homosexuality is hardly hindrance to anything. Therefore if there is no rational purpose in limiting that right then it won't take effect.

What you claim is surely sensible, but is it factual?  Section 9(3) of the Bill of Rights deals with equality.  It states:
The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

Section 37(5) of the same bill deals with states of emergency.  It tables those rights that are non-derogable during such states and the extent to which they apply to equality as:
Quote
With respect to unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex religion or language

By subtracting the two sets of grounds, it would appear that some of them are indeed derogable during a state of emergency and that the state may legally "unfairly discriminate" on those grounds.

There is no imminent threat of any such development - I just wanted to point out that states of emergency could potentially be abused in this manner.
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Mefiante
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« Reply #18 on: March 14, 2014, 13:48:59 PM »

On a side note, I think a good case could be made that should the government declare a state of emergency purely for the underhanded purpose of circumventing the Constitution, such a declaration would very soon prove to be self-fulfilling.

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Jon
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« Reply #19 on: March 14, 2014, 22:20:23 PM »

Also a state of emergency could never impact ones right to sexual orientation because it has no connection to what a purpose of the a state emergency could be. The type of rights that are suspended are the rights that could potentially hinder the effective handling and resolution of a crises. Homosexuality is hardly hindrance to anything. Therefore if there is no rational purpose in limiting that right then it won't take effect.

What you claim is surely sensible, but is it factual?  Section 9(3) of the Bill of Rights deals with equality.  It states:
The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

Section 37(5) of the same bill deals with states of emergency.  It tables those rights that are non-derogable during such states and the extent to which they apply to equality as:
Quote
With respect to unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex religion or language

By subtracting the two sets of grounds, it would appear that some of them are indeed derogable during a state of emergency and that the state may legally "unfairly discriminate" on those grounds.

There is no imminent threat of any such development - I just wanted to point out that states of emergency could potentially be abused in this manner.


The Constitution is one of the greatest documents I have ever been privileged to study. Of course that sounds sensible thats the type of thinking from which the Constitution is structured. A proper reading of that specific section will show you that those rights (equality, human dignity,  life etc) are non-derogable rights. Most significantly section 37(3) & (4) say that any legislation enacted in consequence of a state of emergency may only derogate from the bill of rights if that derogation is strictly required by the emergency - the last part being so important they actually emphasised it - and that any competent court may decide the validity of a declaration of a state of emergency and any legislation enacted in consequence of it. This highlights the independence of the judiciary, or in other words that the executive does not have the authority to act as they please.

Never forget the historical circumstances from which the Constitution was born. Prior to '94 the executive functioned almost like an authoritiatian with the judiciary having little to no say in what it did (legislation could only be struck down on procedural grounds). The new Constitutional order is revolutionary in that it prohibits the executive from ever having such unrestrained power as well as ensuring freedom and equality above all (two of the founding provisions in s 1 of the Con). If you can understand that you can sufficiently reason out any Constitutional scenarios as they will always focus on striking an equitable balance between parties or between the state and private individuals (and this is not even to mention positive rights and obligations).

I think its witch craft talk to speak as though the ANC has any possibility of turning this country into a Zimbabwe. Our safe guards are not only strong but the strongest in the world.
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brianvds
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« Reply #20 on: March 15, 2014, 05:15:50 AM »

I think its witch craft talk to speak as though the ANC has any possibility of turning this country into a Zimbabwe. Our safe guards are not only strong but the strongest in the world.

They could if they could amend the constitution, I would think. But I think it is unlikely that any party will ever again come close to a two thirds majority. South Africa has proven too diverse and unruly for even the Nats to control, with a huge and highly trained police force and army. Neither Zuma nor Malema is likely to fare any better.

It is of some concern to me though that we seem to be facing economic meltdown, in a population where expectations vastly outstrip work ethic.
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